In contrast to Andy Koppelman, Steve Griffin and Doug Kmiec, I'm not all that upset at John McCain's speech on the judiciary. McCain is signaling to Republicans that he will take pretty much the same line on judicial nominations that the party has taken since 1980, when it began an increasingly self-conscious strategy of stocking the courts with movement conservatives. McCain doesn't like some things the courts have been doing, says that judges who decide cases this way are arrogating power to themselves improperly, and then states that if he is elected he will appoint judges who interpret the Constitution the way he thinks it should be interpreted:

There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges.

Quite rightly, the proper role of the judiciary has become one of the defining issues of this presidential election. It will fall to the next president to nominate hundreds of qualified men and women to the federal courts, and the choices we make will reach far into the future. My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power. We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits. And the people of America — voters in both parties whose wishes and convictions are so often disregarded by unelected judges — are entitled to know what those differences are.

Translation: The courts have been going about things badly in recent years. We'll entrench judges who think about the Constitution correctly from our point of view.

So what else is new? That's how the system of partisan entrenchmentin the judiciary works. Yawn. Each party attempts to entrench its friends and/or ideological allies in the judiciary. If they get enough appointments over time, the content of law starts to change. That's the living constitution. That doesn't make the decisions of courts correct. It is always available for us to criticize them and to mobilize politically against them, just as John McCain is doing here. But such criticism and mobilization is part of the political system: it is how the system of checks and balances in a democracy disciplines and shapes the judiciary over time.

Now there are certainly embarrassments in McCain's speech. For one thing, McCain's offering of the Kelo decision as a key example of judicial activism is simply bizarre. Whether or not you think Kelo was correctly decided (and there are plenty of criticisms to be leveled against the rule), the Supreme Court in Kelo followed precedents (Berman and Midkiff) going back half a century that counseled judicial restraint and left decisions up to the elected branches. Let me say that again: The Court in Kelo both followed precedent and deferred to majority rule. You can't get less activist and more restrained than that, unless "activist" means nothing different than "I disagree with what the Court did." Indeed, to the extent that the Kelo Court departed from Berman and Midkiff, it actually moved in the direction that critics wanted, that is, it made it a little more difficult to take private property for privately run development.

Perhaps the greatest embarrassment in the speech, however, is that although McCain argues that the federal judiciary has been misbehaving "[f]or decades," the judiciary has largely been stocked by Republicans for some time now. (Doug makes this point as well). It has been stocked with conservatives so long, in fact, that it is very conservative indeed, at least by comparison to the middle of the twentieth century. In the 28 years since 1980 the Democrats have had the opportunity to nominate judges for only eight years. In the last forty years they have appointed only two Supreme Court Justices out of fourteen appointments (Four by Nixon, one by Ford, none by Carter, three by Reagan, two by Bush I, two by Clinton, and two by Bush II.) So if the Republican Party thinks that federal judges just aren't doing things right (in both senses of that word) they really have only themselves to blame.

McCain's claim that the judiciary has only recently begun to act improperly is simply bogus. (Because of all those conservative jurists?) Somehow, however, I don't think that this revelation, will stop McCain or indeed, anyone else in his party from decrying what judges are doing. That is to say, his claim that there is something different (and increasingly liberal activist) about today's judiciary is dishonest but hardly surprising. No matter how many judges and Justices his party appoints, they will continue to rail against judicial activism. The whole point of partisan entrenchment is to establish and maintain ideological influence in the judiciary, making use of the fact that the federal judiciary enjoys life tenure. That means that the judiciary will cooperate with the political branches when they are also controlled by the same party, and it will slow down drastic changes when the political branches are in the hands of the other party. McCain and the Republican Party well understand that they may be in for a period of Democratic control of Congress, and potentially of the White House as well. During such periods, it is particularly important to push hard to entrench your ideological allies in the judiciary. John Adams and the Federalists understood this point well in 1800, leading to the first great struggle over federal judicial power. Of course, McCain doesn't want to lose the White House, he wants to win it. And so he wants to ensure that the judiciary is friendly to his party's policy initiatives. Equally important, he wants to ensure that the judiciary will apply conservative interpretations of the Constitution to keep ideologically opposed majorities in state and local governments in check. Partisan entrenchment is the way to help ensure that this happens.

Railing against unelected judges-- no matter how many of them your party may have appointed-- is as American as apple pie.

Now there are certainly embarrassments in McCain's speech. For one thing, McCain's offering of the Kelo decision as a key example of judicial activism is simply bizarre. Whether or not you think Kelo was correctly decided (and there are plenty of criticisms to be leveled against the rule), the Supreme Court in Kelo followed precedents (Berman and Midkiff) going back half a century that counseled judicial restraint and left decisions up to the elected branches. Let me say that again: The Court in Kelo both followed precedent and deferred to majority rule. You can't get less activist and more restrained than that, unless "activist" means nothing different than "I disagree with what the Court did."

I think it would be useful to start this discussion by defining what is meant by "activism." My definition is any decision which departs from the text of the Constitution, regardless of whether there is prior precedent similarly departing from the Constitution or the unconstitutional departure is in deference to the elected branches.

Kelo's holding that the state can seize private property to give to private citizens for private use does not comport with the plain meaning of the 5th Amendment and is therefore activist. Kelo is simply another in a long line of activist cases which have attempted to strike the property protections from the 5th Amendment.

Mr. McCain had ample cause to criticize this reprehensible decision which further legalized state theft of property. Under Kelo, Vito Corleone does not have to bring Luca Brasi along to put a gun to the head of a homeowner and tell him that either his signature or his brains will be on the contract to sell his house. All Vito has to do is have the municipal government take the home for him.

[I]f the Republican Party thinks that federal judges just aren't doing things right (in both senses of that word) they really have only themselves to blame.

That is completely correct, which is why I am pleased to hear Mr. McCain publicly commit to choosing conservative judges. The GOP base has a fixation on judges precisely because so many of Mr. McCain's predecessors have screwed up this part of their job.

Given Mr. McCain's own attempted evisceration of the First Amendment under the guise of "campaign finance reform," this speech gives me a small measure of confidence that he will not continue that demolition through the appointment of judges.

I think it would be useful to start this discussion by defining what is meant by "activism." My definition is any decision which departs from the text of the Constitution, regardless of whether there is prior precedent similarly departing from the Constitution or the unconstitutional departure is in deference to the elected branches.

Under this definition, any adherence to stare decisis is activist. For instance, Rehnquist's opinion in Dickerson (reaffirming Miranda) is activist, because the Miranda rule isn't in the text of the Fifth Amendment. Heck, every opinion striking down a statute could be said to be activist, because that is an implicit reaffirmation of Marbury, whose rule isn't in the text of Article III.

Indeed, I doubt that Bart really believes this. If someone appointed him to the Supreme Court, would he really refuse to follow even 50 or 200 year old precedents that had been repeatedly reaffirmed, and even if he believed that utter chaos would result from overturning them? Not even Clarence Thomas believes this. Scalia sure doesn't.

It can't be "activist" to follow precedent. If it is, then one is rejecting the entire common law tradition.

(And just to be clear, I say this as someone who thinks Kelo was wrongly decided.)

Bart, Bart, Bart. A shining example of what the original post was saying: "activitist" has become a euphemism for "a decision I disagree with." MCain's speech was for right-wingers who would prefer to avoid thinking. Republicans appointed the vast majority of the federal judges on the bench, and it is those judges who are held up as the shining exemplars of conservatism who are, in fact, the most likely to strike down legislation enacted as the will of the people. Of late we have seen the federal judiciary by-and-large capitulate the the Bsuh Administration's wholesale disregard of the US Constitution -- also not a "conservative" or "originalist" viewpoint.

Why do Republicans even pretend to have principles? Aside from a rabid opposition to abortion (and about that, even, they are hypocritical), no principle ever enunciated by a national Republican leader in the past fifteen years has actually been enacted by legislation, executive function, or judicial decision. This includes adhering to the notion of "original intent" from the federal bench.

BD: I think it would be useful to start this discussion by defining what is meant by "activism." My definition is any decision which departs from the text of the Constitution, regardless of whether there is prior precedent similarly departing from the Constitution or the unconstitutional departure is in deference to the elected branches.

Under this definition, any adherence to stare decisis is activist.

Not unless you believe that all prior decisions are activist because they depart from the text of the Constitution, which I do not.

Bart, Give that "...so many of Mr. McCain's predecessors have screwed up this part of their job." Why should we think that he will do any better?

:::sigh:::

Hope?

In reality, from my POV, Mr. McCain is simply the best of a bad choice.

Mr. Obama's response to the McCain speech arguing that he would appoint judges committed to abortion and "social justice" gives us a pretty clear indication that Ginsberg would represent the conservative end of Obama's nominee spectrum.

Mr. McCain is making a political commitment to the appoint conservatives in the mold of Roberts and Alito. Of course, Mr. Bush did the same thing and he appointed Harriet Miers purely because she was a woman replacing another woman. However, Mr. Bush's base took him to task for deviating from his public commitment and he backed down. I am unsure whether the even more stubborn McCain will back down from a similar mistake. Even so, the worse McCain would appoint has to be better than a Ginsberg clone...I hope.

If elected, McCain actually has an extraordinary opportunity to complete the conservative legal project over the next couple decades by replacing the aging liberals with a conservative super majority on the Supreme Court and give the circuits firm conservative majorities. For example, where I did not think that Bush could appoint enough justices to reverse Roe, Mr. McCain most certainly does.

I have always felt that David Souter said it best when responding at his confirmation hearing to Strom Thurmond's question (following a 10-minute speech on the subject) about his views on "judicial activism":

I'm reminded of H.L. Mencken's comment re Teddy Roosevelt: "When he attacked the courts it was not because they put their own prejudice before the law but because they refused to put HIS prejudices before the law."

Conservative presidents will appoint conservative judges, and liberal presidents will appoint liberal judges. When they stray from that path, even inadvertently (e.g. Souter), they earn the scorn of the party faithful and no credit from their opponents.

The law will change according to these appointments. At times it will be fairer to individuals than to the seats of power (the Warren court), and at times the balance will be reversed (the Rehnquist/Roberts courts).

As a liberal-to-moderate Democrat, I would be furious if a President Obama or a President Clinton did not appoint judges whose philosophies skewed toward the left. In fact, it's one of the main things I'm looking forward to from our next Democrat president. So it's hard to be mad or surprised about McCain's statements.

So if you are saying that any decision that applies a prior precedent that was wrongly decided is "activist", you are rejecting the entire doctrine of stare decisis.

Huh?

If the case of "A v. B" holds that the President has the power to appropriate money for the Iraq War, that decision is contrary to the text of the Constitution and is activist under my definition.

If the case of "C v. D" affirms the unconstitutional holding if "A v. B," then common sense would dictate that "C v. D" is equally activist.

Repetition of an error does not make it any less of an error.

Stare decisis is a common law principle which has far less application in constitutional interpretation, and no application at all when the prior precedent is in error. See e.g. Smith v. Allwright, 321 U.S. 649, 665 (1944).

Stare decisis is a common law principle which has far less application in constitutional interpretation, and no application at all when the prior precedent is in error. See e.g. Smith v. Allwright, 321 U.S. 649, 665 (1944).

Bart, this is arrogant and uninformed. Stare decisis has been a part of our constitutional decisionmaking for 200 years. Now, it isn't absolute, and you are surely right when you say it carries less weight in constitutional matters (because of the difficulty of amendment), but it certainly carries some weight.

Further, your statement that stare decisis carries no weight when the precedent is in error shows that you don't know the first thing about jurisprudence. You see, you DON'T NEED stare decisis to reaffirm correct decisions, you knucklehead! The doctrine only comes into play when the prior decision was wrong (in the judge's view) and the judge has to decide whether to follow it anyway.

Finally, you cannot read the reference to precedent in the White Primary Cases that you cite as meaning that the Court never follows erroneous precedent. See, e.g., Dickerson v. United States (reaffirming Miranda despite disagreement with it), United States v. Virginia (Rehnquist, J., concurring).